We all have preconceptions about the language you might find on the construction project. However, it is not every day that you read a court opinion and you find the following language: "…nor is it the business of the federal courts generally to clean up the language and conduct of construction sites." This came from a recent ruling from a federal appeals court in Louisiana.
In EEOC v. Boh Brothers Construction Co. (pdf), the United States Court of Appeals reviewed a Title VII case brought by the Equal Employment Opportunity Commission against Boh Brothers Construction Company on behalf of the claimant, a male construction worker who alleged that his superintendent engaged in same-sex harassment. According to the opinion, there was "plenty of evidence that [the employer’s superintendent] is a world-class trash talker and the master of vulgarity in an environment where these characteristics abound."
At the trial court, the jury was "very sympathetic" and awarded both actual and punitive damages to the claimant. Although the appeals court agreed that the superintendent’s language and abuse were offensive, it did not establish a claim of unlawful same-sex discrimination. Ultimately, the appeals court concluded that there was insufficient evidence that the superintendent "acted on the basis of gender" in his treatment of the claimant.
Although the court’s opinion is a good read for HR staff and employment lawyers for understanding same-sex discrimination standards, it also provides a few good lessons for all involved in the construction industry:
- Words make a difference. The Boh Brothers case is a good reminder that words can have serious consequences, whether you are talking about the formation of a contract, the verbal admissions made during project performance, or the legal liability created by your management and employees.
- Employers beware of employee conduct. Although the question was not raised in Boh Brothers, employers need to understand that the company may be responsible for the conduct of its employees performed within the course of their employment.
- Professionalism is important. If you were to read only the Boh Brothers‘ opinion, you would think that the contractor-employer simply defended the lawsuit. Of course they did….there was a lot of money at stake. But the company disciplined the superintendent and implemented a training program for this behavior. According to an ENR article on the case (sub. req.), company representatives confirmed that Boh Brothers was embarrassed by the conduct and that "such treatment [of employees] will not be tolerated." Even though the employer won in court, it was also important for the company to publicly admonish the offensive conduct.
Have you read the Boh Brothers‘ decision? What other lessons exist?